888 F.

2d 189

Robert BRENNAN, Plaintiff, Appellant,

v.
Roderick HENDRIGAN, et al., Defendants, Appellees.
No. 89-1214.

United States Court of Appeals,

First Circuit.
Heard Sept. 13, 1989.
Decided Oct. 27, 1989.

Michael J. Conley, for plaintiff, appellant.

Brian Rogal, with whom Timothy M. Burke was on brief, for defendants,
appellees Roderick Hendrigan and Gary Walsh.
Samuel Leiter, with whom Norman Holtz, Holtz and Gilman, P.C.,
Richard L. Barry, Jr., and Olivieri, Truttman, Barry & Casey were on brief
for remaining appellees.
Before TORRUELLA, SELYA and MAYER * , Circuit Judges.
SELYA, Circuit Judge.

There is presented for our consumption an appeal from an order of the United
States District Court for the District of Massachusetts granting summary
judgment for all defendants in this civil rights action. After fully digesting the
record, we have found plaintiff's assignments of error to be uniformly
unnourishing. We therefore affirm.

I. BACKGROUND
2

Although many of the details and nuances are controverted, the factual
predicate underlying this suit is, for the most part, undisputed. We set forth that
background in a manner consistent with the protocol of Fed.R.Civ.P. 56,
described infra.

Plaintiff-appellant Robert Brennan was hired as a correctional officer at the

Middlesex County House of Correction in Billerica, Massachusetts on
September 1, 1982. His appointment was subject to a one-year probationary
period. During the year, an inmate told prison officials that Brennan was
trafficking with convicts, bartering drugs for jewelry. On July 6, 1983, a "sting"
operation was mounted, albeit clumsily. After alerting the state police, prison
officials supplied their informant with some baubles to be offered to plaintiff as
part of an illegal exchange. Shortly thereafter, the inmate reported that Brennan
had risen to the bait, taken the jewelry, and agreed to the bargain.

The trap snapped shut--a bit prematurely, as matters turned out. Three prison
officials (Gallant, the prison's security chief, and two guards, Spellisey and
Roark) approached plaintiff's duty station and requested that he accompany
them to an office within the prison complex. Once there, Brennan was
instructed to empty his pockets. When he did so, the jewelry was found.
Brennan was searched and told that he would be charged criminally. He alleges
that he was handled ungently during the episode; his shirt pocket was ripped
and his wallet "torn apart." Plaintiff claims, and defendants deny, that he
satisfactorily explained the situation. See infra n. 5. The prison officials claim,
and Brennan denies, that he admitted guilt. Before the session ended, the
officers took Brennan's car keys (which had been in his pocket) and conducted
a consensual, but warrantless, search of his automobile. At one point,
Aubuchon, the prison's personnel director, entered the office and terminated
plaintiff's employment.

Thereafter, two state troopers (who had been briefed earlier and were waiting in
their cruiser) came into the room. Before interviewing Brennan, the troopers
were told by prison officials that Brennan had been discharged after admitting
(1) that he had received jewelry from an inmate, intending to swap money and
marijuana in exchange; and (2) that, on another occasion, he had brought illegal
drugs into the facility for prisoner use. The troopers claim, and Brennan denies,
that during the interview, Brennan admitted to them that he intended to remove
the jewelry from the penitentiary, sell it, and pay the inmate for stealing it. At
some point after Brennan was cashiered, the prison superintendent (Quealy)
was brought up to speed. Later that evening, the superintendent and his deputy
(Ryan) spoke to the duty shift concerning plaintiff's dismissal.

We need only offer a decurtate account of the remaining events. Brennan was
charged, found guilty of receiving illicit articles with intent to convey by a
judge in Lowell District Court, appealed, claimed a de novo trial by jury, and
was eventually acquitted.

II. PROCEEDINGS BELOW

7

Following acquittal, plaintiff brought the instant action against the Middlesex
County Sheriff, six persons employed at Billerica (officers), and two
Massachusetts state troopers (troopers).1 His complaint contained five counts,
all of which drew upon the same 38-paragraph narrative of events. Count II was
dismissed early on, and is not before us. We limn the remaining statements of
claim:

A. Count I, brought under 42 U.S.C. Sec. 1983 (1982), alleged in substance

that, on various dates from and after July 6, the individual defendants, acting
under color of law and in a conspiratorial fashion, deprived Brennan of various
rights secured by the federal Constitution.

B. Count III, a pendent state-law claim, asserted that the described conduct
violated the Massachusetts Civil Rights Act, Mass.Gen.L. ch. 12, Sec. 11I
(1986).

10

C. Count IV alleged that the Sheriff, qua employer, deprived Brennan of a

constitutionally secured liberty interest by cashiering him without due process
of law.

11

D. Count V, oblivious of any need for identifying theoretical roots, simply

alleged that plaintiff had suffered emotional distress as a result of defendants'
misconduct.

12

After completion of discovery, defendants--contending that there were no

triable issues--moved for brevis disposition. The district court, in an ore tenus
bench decision, obliged. Brennan appealed.

III. THE APPLICABLE LEGAL STANDARD

13

A motion for summary judgment must be granted if:

14 pleadings, depositions, answers to interrogatories, and admissions on file,

[T]he
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.
15

Fed.R.Civ.P. 56(c). Accordingly, the movant must adumbrate "an absence of

evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477
U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). When that is

accomplished, the burden shifts to the opponent to establish the existence of a

fact issue which is both "material," in that it might affect the outcome of the
litigation, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
2510, 91 L.Ed.2d 202 (1986); Hahn v. Sargent, 523 F.2d 461, 464 (1st
Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976),
and "genuine," in that a reasonable jury could, on the basis of the proffered
proof, return a verdict for the opponent. Anderson, 477 U.S. at 248, 106 S.Ct.
at 2510; Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988). It
is settled that the nonmovant may not rest upon mere allegations, but must
adduce specific, provable facts demonstrating that there is a triable issue. "The
evidence illustrating the factual controversy cannot be conjectural or
problematic; it must have substance in the sense that it limns differing versions
of the truth which a factfinder must resolve at an ensuing trial." Mack v. Great
Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). As the Supreme
Court has said:
16
[T]here
is no issue for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party. If the evidence is
merely colorable, or is not significantly probative, summary judgment may be
granted.
17

Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11.

18

It is against this firmly-entrenched backdrop that we examine whether Brennan

sustained his burden of establishing the existence of genuine, material fact
issues with respect to any of his claims.

IV. THE FOURTH AMENDMENT CLAIMS

19

We start with the claims encompassed by count I of plaintiff's complaint,

pausing first to comment upon the doctrine of qualified immunity; and then
proceeding to assess the reasonableness of defendants' conduct.

A. Qualified Immunity.
20
21

State actors are entitled to qualified immunity from damages under section
1983 if they have performed discretionary functions falling within the scope of
their authority and have done so in an objectively reasonable manner, measured
by the state of the law at the time the conduct occurred. Procunier v. Navarette,
434 U.S. 555, 561-62, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978); Unwin v.
Campbell, 863 F.2d 124, 128 (1st Cir.1988); Brown v. Ponte, 842 F.2d 16, 18
(1st Cir.1988); Maldonado Santiago v. Velazquez Garcia, 821 F.2d 822, 829-30

(1st Cir.1987); Blackburn v. Snow, 771 F.2d 556, 569 (1st Cir.1985). That is to
say, officials are shielded from liability for such damages insofar as their
behavior does not violate clearly established statutory or constitutional rights
"of which a reasonable person would have known...." Harlow v. Fitzgerald, 457
U.S. 800, 818-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The test is an
objective one: "the immunity inquiry focuses not on the official's subjective
belief about his conduct, but on whether the belief he held was objectively
unreasonable." Blackburn, 771 F.2d at 569.
22

When, as here, the defense of qualified immunity is raised, a plaintiff cannot

sidestep it for summary judgment purposes merely by alleging that defendants
uncaringly transgressed his rights. Anderson v. Creighton, 483 U.S. 635, 64041, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987). "[A]n allegation of malice
is not sufficient to defeat immunity if the defendant acted in an objectively
reasonable manner." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092,
1096, 89 L.Ed.2d 271 (1986). State actors must keep their behavior within the
realm of reason; but, perfection is neither expected nor required. In the lexicon
of qualified immunity, there is room for mistaken judgments. It follows that the
reasonableness of a defendant's actions may be determined only by examining
them in light of the particular circumstances known at the time the challenged
conduct took place.

23

For an act to fall outside the scope of immunity, "the unlawfulness must be
apparent ... in the light of pre-existing law.... The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right." Creighton, 483 U.S. at 640, 107 S.Ct. at 3039.
Qualified immunity, then, does not protect reckless, plainly incompetent, or
knowing violators of the law, Malley, 475 U.S. at 341, 106 S.Ct. at 1096; but it
offers a haven to many other state actors. Officials are immune unless the law
clearly proscribed the actions they took. Davis v. Scherer, 468 U.S. 183, 191,
104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984). This is as it should be: "Reliance
on the objective reasonableness of an official's conduct, as measured by
reference to clearly established law, should avoid excessive disruption of
government and permit the resolution of many insubstantial claims on
summary judgment." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.

B. Reasonableness of Officers' Actions.

24
25

As is evident from the foregoing, the qualified immunity inquiry reduces to a

question of whether a reasonably competent official would likely have believed
his actions vis-a-vis Brennan to be in accordance with the Constitution. We
apply this test first to the officers.2 To do so, it is necessary briefly to survey

the state of the law, and then to review the attendant circumstances. Because
plaintiff has concentrated his fire on the fourth amendment (he has mentioned
other theories in passing, but none merit discussion), we follow his lead.
26

The fourth amendment reaches stops and detentions short of arrest. United
States v. Trullo, 809 F.2d 108, 110 (1st Cir.), cert. denied, 482 U.S. 916, 107
S.Ct. 3191, 96 L.Ed.2d 679 (1987). Yet, not every contact by a police officer
implicates constitutional rights; nor does every stop or detention require
probable cause. See Lopez v. Aran, 844 F.2d 898, 904-05 (1st Cir.1988);
United States v. Ferreira, 821 F.2d 1, 4 (1st Cir.1987); Trullo, 809 F.2d at 110;
United States v. Manchester, 711 F.2d 458, 460 (1st Cir.1983). Merely asking
an individual to answer questions will not ordinarily violate the fourth
amendment. See, e.g., INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758,
1762, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct.
1319, 1323, 75 L.Ed.2d 229 (1983); Manchester, 711 F.2d at 460. Where an
individual is detained, the fourth amendment is more deeply implicated.
Nevertheless, the constitutional guarantee is violated only if the detention is
unreasonable. As we recently wrote:

27
[W]here
the stop and interrogation comprise more of an intrusion, and the
government seeks to act on less than probable cause, a balancing test must be
applied. The touchstone, of course, is reasonableness.
28

Lopez Lopez, 844 F.2d at 905. In assessing reasonableness, "judges must weigh
the need to search or seize against the invasion the search or seizure entails."
Id.; see also New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83
L.Ed.2d 720 (1985) (plurality opinion); Blackburn, 771 F.2d at 564;
Manchester, 711 F.2d at 460-61. The components of this balancing test are "
the gravity of the public concerns served by the seizure, the degree to which the
seizure advances the public interest, and the severity of the interference with
individual liberty." Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61
L.Ed.2d 357 (1979); see also Lopez Lopez, 844 F.2d at 905 (same; quoting
Brown ).

29

The weighbeam of reasonableness cannot be set in a vacuum. Virtually by

definition, reasonableness is a mutable norm--fact-specific and dependent on
the particular circumstances. In this case, a critically important circumstance is
the jailhouse setting:

30 inquiry into the constitutionality of security measures employed in a penal

Any
institution must begin with the premise that "prison administrators should be
accorded wide-ranging deference in the adoption and execution of policies and

practices that in their judgment are needed to preserve internal order and discipline
and to maintain institutional security."
31

Blackburn, 771 F.2d at 562 (quoting Bell v. Wolfish, 441 U.S. 520, 547, 99
S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979)). And in Blackburn, we noted
especially "that the interest of prison officials in intercepting contraband and
maintaining internal order must be accorded great weight." Id. at 564 (citing,
inter alia, Block v. Rutherford, 468 U.S. 576, 591, 104 S.Ct. 3227, 3235, 82
L.Ed.2d 438 (1984); Hudson v. Palmer 468 U.S. 517, 526-28, 104 S.Ct. 3194,
3200-01, 82 L.Ed.2d 393 (1984); Bell, 441 U.S. at 547, 99 S.Ct. at 1878).

32

Thus, in the prison milieu, the cause for public concern runs high. And in this
case, we must add to the official interest in maintaining institutional security
what strikes us, at the very least, as a solid basis for particularized suspicion of
Brennan's activities. We then balance against this powerful combination the
rather modest extent of the intrusion3 and the lessened expectation of privacy
inuring to one in Brennan's shoes. An expectation of privacy is legitimate
where a person has "exhibited an actual (subjective) expectation of privacy and
... the expectation [is] one that society is prepared to recognize as 'reasonable.' "
Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576
(1967). Given the fact that "society is prepared to recognize as reasonable the
proposition that correction officers have diminished expectations of privacy in
light of the difficult burdens of maintaining safety, order and security that our
society imposes on those who staff our prisons," SEC. & Law Enforcement
Emp., Dist. C. 82 v. Carey, 737 F.2d 187, 202 (2d Cir.1984), and mindful of
the admitted need for heightened security in penal institutions, it would seem
that a search and seizure such as that conducted by the officers could hardly
have transgressed the fourth amendment. In the real world, prison guards must
steel themselves to tolerate even greater incursions. See id. at 203-04
(reasonable suspicion justifies strip searches of correctional officers).

33

Be that as it may, we need not go so far to uphold the district court's grant of
summary judgment in favor of the officers. It is crystal clear that, however the
merits might be resolved, the officers acted sufficiently within the bounds of
reasonableness so as to don the cloak of qualified immunity. It is undisputed
that the prison had a problem with contraband; that there was some reason to
believe guards might be involved; and that an informant had named plaintiff as
a trafficker. It is also undisputed that, before the confrontation blossomed, the
officers had given jewelry to an inmate, only to be told, later, that Brennan had
accepted the bijouterie and promised to deliver marijuana in exchange. By any
stretch of the imagination, this information provided a more than reasonable
basis for conducting a search. The officers' conduct was "objective[ly]

reasonable[ ] ... as measured by reference to clearly established law." Harlow,

457 U.S. at 818, 102 S.Ct. at 2738. Thus, qualified immunity barred plaintiff's
damages action against them.4
34

We do not mean to flog a moribund mare. But, it is apparent to us that appellant

fails (or refuses) to recognize the essential irrelevancy at this stage of whether
he was, or was not, actually guilty of criminal activity. The relevant inquiry,
rather, is whether the belief held by the officers was objectively reasonable and
sufficed to justify their behavior under the circumstances then extant. See, e.g.,
Newman v. Commonwealth of Massachusetts, 884 F.2d 19, 26 (1st Cir.1989)
("Even if it ultimately can be shown that the decision ... was arbitrary ...
defendants are entitled to immunity from damages so long as they had no
reason to know that the evidence on which they relied was faulty."). The
district court was presented with no evidence tending to show that, given the
information available to them, the correctional officers acted unreasonably.
Summary judgment was appropriate.

C. Reasonableness of Troopers' Actions.

35
36

The two troopers are at yet a further remove. They had no role in devising the
sting operation. They remained in their cruiser, outside the prison, until after the
episode occurred and Brennan had been grilled by the correctional officers. The
troopers were then escorted inside and informed by the ranking officer, Gallant,
that (1) the jewelry had been found, (2) Brennan had confessed, and (3)
Brennan's employment was being terminated. When the troopers entered the
interrogation room, they asked plaintiff to sign a Miranda form, questioned him
about drug dealings inside and outside the prison, and sent him home with
instructions to "return the next day (to the state police barracks) for further
questioning." They had no physical contact with plaintiff on that occasion. The
record is silent as to the length of the encounter, but the context suggests that it
could not have been protracted. The next day, Brennan voluntarily reported to
the barracks and was interviewed again. One of the troopers, Hendrigan,
thereafter swore out a criminal complaint. At no time was Brennan arrested.

37

On these facts, it requires no citation of authority to conclude that the troopers'

actions were objectively reasonable. Notwithstanding that Brennan says he
proclaimed his innocence to the state police5 --a fact which, for Rule 56
purposes, must be assumed in his favor--it can scarcely be argued that the
fourth amendment bars troopers from questioning a prison guard in
circumstances like these. After all, "[p]olice officers hear many selfexonerating claims from suspects and should not be required to give significant
weight to [those] statements...." Thompson v. Olson, 798 F.2d 552, 557 (1st

Cir.1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1354, 94 L.Ed.2d 524 (1987).
The district court commented that it "almost seems ridiculous" that an action
was brought against the troopers. We see no "almost" about it. Summary
judgment was proper.
D. Conspiracy Claim.
38
39

We need not loiter long over plaintiff's ancillary claim that the correctional
officers and troopers conspired to deprive him of his constitutional rights. This
is not a case where the whole aggregates more than the sum of the parts. As we
have noted, see supra, there has been no showing whatever that anyone
deprived Brennan of constitutionally secured rights. That deficit ends the
matter. "This court has ruled that for a conspiracy to be actionable under section
1983 the plaintiff has to prove that 'there [has] been, besides the agreement, an
actual deprivation of a right secured by the Constitution and laws.' " Earle v.
Benoit, 850 F.2d 836, 844 (1st Cir.1988) (quoting Landrigan v. City of
Warwick, 628 F.2d 736, 742 (1st Cir.1980)); see also Slotnick v. Staviskey,
560 F.2d 31, 33 (1st Cir.1977) ("conclusory allegations of conspiracy" cannot
support a section 1983 claim), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55
L.Ed.2d 783 (1978). On this record, plaintiff's conspiracy claim is meritless.

V. THE LIBERTY INTEREST CLAIM

40

As a probationary employee, Brennan had no property interest in his job. He

theorizes, however, that he should have had a pretermination hearing, and that
being fired without one deprived him of a liberty interest without due process
of law. He says that this deprivation occurred because the charge brought
against him threatened "seriously [to] damage his reputation and substantially
curtail job opportunities in his chosen profession."

41

Although the fourteenth amendment offers some measure of protection against

governmental action that could "seriously damage [a person's] standing and
associations in his community," Board of Regents v. Roth, 408 U.S. 564, 573,
92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972), the Court has stated specifically
that "reputation alone, apart from some more tangible interests such as
employment, [is not] either 'liberty' or 'property' by itself sufficient to invoke
the procedural protection of the Due Process Clause." Paul v. Davis, 424 U.S.
693, 701, 96 S.Ct. 1155, 1161, 47 L.Ed.2d 405 (1976). Rather, reputational
injury must coincide with some other "alteration of status." Id. at 709-10, 96
S.Ct. at 1164. And, where the claimed alteration involves loss of a job, the
Court has insisted that the defamation "occur in the course of the termination of
employment." Id. at 710, 96 S.Ct. at 1165; see also Laureano-Agosto v. Garcia-

Caraballo, 731 F.2d 101, 104 (1st Cir.1984) (same). This means, of course, that
a public employer's failure to afford a name-clearing hearing for a discharged
employee is cognizable under section 1983 as a deprivation of a liberty interest
only if (1) the dismissal is grounded on charges which stigmatize the employee,
see Codd v. Velger, 429 U.S. 624, 627-28, 97 S.Ct. 882, 883-84, 51 L.Ed.2d 92
(1977) (per curiam); Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079,
48 L.Ed.2d 684 (1975); Roth, 408 U.S. at 573, 92 S.Ct. 2707, and (2) "the
employer creates and disseminates a false and defamatory impression about the
employee in connection with his termination." Codd, 429 U.S. at 628, 97 S.Ct.
at 884. Moreover, the stigmatization must occur "in the course of the
termination of employment." Paul, 424 U.S. at 710, 96 S.Ct. at 1165. As we
wrote in an earlier case:
42
Unless
... defamatory assertions are made before or during the discharge or one has
good reason in advance to believe that the discharge of an 'at will' employee will
produce such public claims, a pre-termination-hearing requirement as a general
matter is less necessary. To require it would simply erase in many instances the
constitutional distinction between the 'at will' and the 'tenured' employee.
43

Laureano-Agosto, 731 F.2d at 104-05; see also Ventetuolo v. Burke, 596 F.2d
476, 482-83 (1st Cir.1979).

44

In order to withstand a motion for summary judgment, then, plaintiff must

proffer competent evidence that, in the course of his dismissal, defamatory
assertions were made. We have scrutinized the record with care and have found
no such evidence. The prison officials appear to have been extremely
circumspect in what they said at and near the time of Brennan's departure. The
record contains not a shred of competent proof that any stigmatizing statements
were uttered.6

45

Plaintiff's allegation that newspaper stories were published "holding [plaintiff]

up to public hate, contempt and ridicule, and damaging his reputation" is
equally unavailing. The record supplies no evidence that the Sheriff or any of
his deputies ever made any announcement concerning Brennan's termination to
any news organization. The articles in question, which appeared two months
and more after plaintiff's discharge, cannot conceivably be categorized as, or
assumed to recount, matters occurring "in the course of the termination."
Laureano-Agosto, 731 F.2d at 104. Count IV of the complaint comprised
suitable grist for the summary judgment mill.

VI. MISCELLANY

46

Plaintiff's claim under the state civil rights law, Mass.Gen.L. ch. 12, Sec. 11I,
embodied in count III of his complaint, cannot forestall final judgment. Plaintiff
has treated the federal and state civil rights claims identically, so we are entitled
to assume that they are correlative. Compare, e.g., Newman, at 22 n. 3.
Therefore, count III fails for the same reasons as count I. Even if this were
otherwise, count III, as a pendent state-law claim, would be subject to dismissal
under the rule of United Mine Workers of America v. Gibbs, 383 U.S. 715,
725-27, 86 S.Ct. 1130, 1138-39, 16 L.Ed.2d 218 (1966).

47

Similarly, count V is no obstacle to final disposition. If that count can be read

to state an actionable claim at all, it is a state-law claim for infliction of
emotional distress. But, pretrial termination of plaintiff's federal-law claims, see
supra, and the absence of any other cognizable basis for federal jurisdiction,
leave a federal court no real choice but to dismiss such a pendent state-law
initiative. See id.VII. CONCLUSION

48

We need go no further. Having tasted the record and sampled plaintiff's bill of
fare, we are left without sustenance. We agree entirely with the district court
that there was no genuine issue as to any material fact, and that all defendants
were legally entitled to judgment.

49

Affirmed.

Of the Federal Circuit, sitting by designation

The Sheriff (nominally, Brennan's employer) was sued only in his official
capacity. The six Billerica-based defendants, Gallant, Spellisey, Roark,
Aubuchon, Quealy, and Ryan, were sued personally, as were the troopers
(Roderick Hendrigan and Gary Walsh)

In many cases, it is necessary to differentiate among individual defendants as

each may have known, or done, different things. See Newman v.
Commonwealth of Massachusetts, 884 F.2d 19, 26 (1st Cir.1989) ("Defendants
are liable for damages only if they should have known that what they did
violated the law."); see also Unwin, 863 F.2d at 133-37 (inquiring separately
into qualified immunity of various police officers). We see no such necessity
here

Brennan was detained, that is, accompanied by officers to an interrogation

room at the prison, and questioned. By his account, the "detention" lasted a

maximum of 20 minutes. He was told to empty his pockets and suffered minor
damage to his shirt and billfold. He was also jostled at one point. He appears to
concede, as indeed he must, that negligence alone will not support a section
1983 claim. See Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664,
88 L.Ed.2d 662 (1986)
4

Because plaintiff's complaint seeks only money damages (not reinstatement or

other equitable relief), qualified immunity is an absolute defense to the action

Throughout the criminal proceedings and in the course of this litigation,

plaintiff has asserted that he took the jewelry with the intention of turning it in
to his supervisor; and that he was besieged by over-eager colleagues before he
had an opportunity to obtain and complete a property report form. He claims to
have told the same tale all along

We can give no weight to plaintiff's self-serving deposition testimony to the

effect that a prison guard, not a defendant in this case, told him that two
members of the sheriff's department had advised the guards on duty that
Brennan was let go because he had been "lugging" drugs into Billerica. Rule 56
requires that an opposition to summary judgment "be made on personal
knowledge, ... set[ting] forth facts as would be admissible in evidence...."
Fed.R.Civ.P. 56(e). Moreover, even on plaintiff's hearsay account, the alleged
communications were made after Brennan's discharge and not as part and parcel
of the termination proceeding